Excerpt:.....financial corporation, air 2004 kar 46 dissented from]. - the inquest report and the postmortem certificate proved by the authors thereof clearly support the version given by these witnesses. the tribunal would have done well to have calculated the expected life of each of the claimants separately......of going to west asia for employment. claimants claimed rs. 5,000/- as special damages on account of compensation for pain and suffering undergone by the deceased, rs. 500/- towards funeral expenses and rs. 75,000/- as compensation for future loss of income or support. claim was opposed by the owner, driver and insurer of the vehicle. they contended that the cycle was proceeding from west to east along the southern extremity of the road and the cyclist suddenly dashed across the road from behind a lorry parked on the southern side of the road. therefore, according to them, the claim did not lie. they also contended that the claim was excessive. their contentions were overruled by the tribunal which awarded damages on account of compensation for pain and suffering undergone by.....

Judgment:

U.L. Bhat, J.

1. M.F.A. 69 of 1979 is filed by the owner and driver and M.F.A. 76 of 1979 is filed by the insurer of a bus bearing registration No. KLE 8071, challenging the award of the Motor Accidents Claims Tribunal, Ernakulam awarding a sum of Rs. 41,500/- as compensation together with interest at 6 per cent from the date of award and costs to the claimants, father, mother and grandmother of N.K Radhakrishnan Nair who died in a motor vehicle accident on 4-2-1976 at Thripunithura.

2. When Radhakrishnan Nair was riding a cycle from east to west along the public road near Thripunithura on the afternoon of 4-2-1976, the bus proceeding from east to west hit the cycle from behind as a result of which Radhakrishnan Nair was thrown out and he was dragged on for about 10 yards, with the cycle, along the road and thereafter front wheel of the bus ran over him. At that time, Radhakrishnan Nair was drawing monthly salary of Rs. 150/- under PW 3 and had prospects of going to West Asia for employment. Claimants claimed Rs. 5,000/- as special damages on account of compensation for pain and suffering undergone by the deceased, Rs. 500/- towards funeral expenses and Rs. 75,000/- as compensation for future loss of income or support. Claim was opposed by the owner, driver and insurer of the vehicle. They contended that the cycle was proceeding from west to east along the southern extremity of the road and the cyclist suddenly dashed across the road from behind a lorry parked on the southern side of the road. Therefore, according to them, the claim did not lie. They also contended that the claim was excessive. Their contentions were overruled by the Tribunal which awarded damages on account of compensation for pain and suffering undergone by the deceased and in regard to funeral expenses as claimed. The Tribunal further awarded Rs. 36,000/- as compensation for loss of income or support.

3. The insurer has filed a separate appeal. Liability of the insurer arises on the basis of the contract and in the light of Section 96, right to the insurer to defend an action for compensation on the grounds enumerated in Clauses (a), (b) and (c). The defence that the accident took place not on account of rash and negligent driving on the part of the driver is not a defence contemplated under this provision. Equally, this provision does not contemplate defence being raised in regard to the quantum of compensation. The insurer has no case that the contract enables the insurer to defend the action in the place of the insured. In these circumstances, the insurer is not entitled to raise the contentions sought to be raised in the appeals. This question has been settled by a long line of decisions. See British India General Insurance Company Ltd. v. Captain Itbar Singh 1958-65 ACJ 1 (SC); Ayesha Begum v. G. Veerappan 1966 ACJ 101 (Madras); Kesavan Nair v. State Insurance Officer 1911 ACJ 219 (Kerala); Oriental Fire and General Insurance Co. Ltd. v. Gopalakrishna Filial 1978 ACJ 473 (Kerala), United India Fire General Insurance Co. Ltd. v. Kalyani 1983 ACJ 29 (Kerala) and New India Assurance Company Ltd. v. O.V. Radhakrishnan 1983 ACJ 475 (Kerala).

4. However, the appeal filed by th/e owner and the driver of the vehicle is maintainable. The only contention urged at the Bar by learned Counsel for the appellants is regarding the quantum of compensation awarded. Eye-witnesses examined in the case are PWs. 4, 6 and 7. Tribunal accepted the evidence of PWs 6 and 7, which shows that the bus driven at an excessive speed and without sounding horn came from east to west and hit the cyclist (who was also riding in the same direction) from behind. The cyclist was thrown out and dragged along with the cycle to some distance and the front wheel of the bus ran over him. The inquest report and the postmortem certificate proved by the authors thereof clearly support the version given by these witnesses. The rival story propounded by the appellants that the cyclist was coming from the opposite direction and suddenly crossed the road from behind a parked lorry was rebutted by these witnesses and was rejected by the Tribunal. On a consideration of the evidence and circumstances of the case, we agree with the Tribunal that the version given by PWs 6 and 7 is acceptable. It must necessarily follow that Radhakrishnan Nair sustained injuries on account of the rash and negligent driving of the bus by the driver and died on account of the injuries.

5. There is no controversy regarding the sum of Rs. 500/- awarded towards funeral expenses incurred by the claimants. The Tribunal awarded Rs. 5,000/- as compensation on account of pain and suffering undergone by the injured before his death. This is challenged by the appellants. According to them, the heirs, dependents of estate are not entitled to claim compensation on this count.

6. Section 2 of the Fatal Accidents Act, 1855 deals with compensation for loss sustained by the estate. It refers to pecuniary loss to the estate of the deceased occasioned by the wrongful act, neglect or default and the sum when recovered, shall be deemed part of the assets of the estate of the deceased. Pain and suffering undergone by the deceased is one of the heads of damages recoverable under Section 2. In Rose v. Ford (1937) AC 826, the Court of Appeal sustained damages awarded under this head and the House of Lords in appeal did not interfere with the same. This principle has been followed by this Court earlier in Concord of India Insurance Co. Ltd. v. Subramonia Iyer 1964 KLT 1077. Of course, if death is instantaneons, pain and suffering of deceased may not be a recognised count. Where it is not instantaneous, there is no reason why compensation could not be awarded under this count. In this case, death was not instantaneous in the sense that Radhakrishnan Nair did not die immediately on impact. He was thrown out, dragged to some distance along the road and then the front wheel ran over him, Necessarily, he must have suffered enormous pain and suffering on account of the impact and injuries, though not for a long time. We are therefore not inclined to interfere with this part of the award.

7. The main attack levelled by the appellants is against the award of Rs. 36,000/- as compensation for loss of future income sustained by the claimants, namely parents and grandmother of the deceased. Father of the deceased was examined as PW 2, employer of the deceased was examined as PW 3. Their evidence shows that Radhakrishnan Nair was employed by PW 3 as Manager on a monthly salary of Rs. 150/-. All the expenses of Radhakrishnan Nair were being met by PW 3, who, in addition, was paying something for travelling and incidental expenses. Evidence of PW 2 is that the household had no other support and the entire amount was being used for the expenses of the claimants. This evidence was accepted by the Tribunal and we find no reason to interfere with the same.

8. There is one other aspect which was not very much highlighted by the Tribunal. The definite evidence of PWs 2 and 3 is that younger brother of PW 3 is employed in West Asia and there were plans to secure employment for Radhakrishnan Nair in West Asia and send him there. Radhakrishnan Nair had studied upto S.S.L.C. In these circumstances, Radhakrishnan Nair had definite prospects of employment in West Asia and had considerable expection of increased income which would definitely have been shared by him with his dependents viz., the claimants.

9. The Tribunal accepted that the claimants were receiving support to the extent of Rs. 150/- per month from Radhakrishnan Nair and accepted 20 years' multiplier as the basis for computation of compensation. It was thus that the sum of Rs. 36,000/- was arrived at.

10. Learned Counsel for the appellants contended that acceptance of 20 as the multiplier was erroneous and the Tribunal erred in not making any deduction on account of accelerated payment in lump sum. Claim for compensation on this account rests on Section 1A of the Fatal Accidents Act, 1855. Compensation should be proportionate to the loss resulting from the death. This section is substantially a reproduction of the provisions in the English Fatal Accidents Act, 9 and 10 Vict. Ch. 93. Scope of these provisions has been discussed by the House of Lords in Davies v. Powell Duffryn Associated Collieries Ltd. (1942) AC 601 and Nance v. British Columbia Electric Railway Co. Ltd. (1951) AC 601. These decisions have explained that damages should be on the basis of any benefit accruing to a dependent by reason of the relevant death, balance of loss and gain to the dependent by the death being ascertained. The basis is the reasonable expection of pecuniary benefit or benefit reducible to money value. The actual pecuniary loss can only be ascertained by balancing, on the one hand, the loss to him of the future pecuniary benefit, and on the other, any pecuniary advantage which from whatever source comes to him by reason of the death. What the Tribunal should have endeavoured to find is 'if the deceased had not been killed, but had eked out the full span of life to which in the absence of the accident be could reasonably have looked forward, what sums during that period would he probably have applied out of his income to the maintenance of his wife and family'. The Tribunal has to assess expectation of life of the deceased having regard to his age and bodily health and other relevant factors. The Tribunal has to assess his income and estimate what part of his income was being spent on the dependants. The loss must be computed on the basis of the loss of such amount of money which he would have expended on the dependants during his entire life time less, of course, any benefits which the dependants might have derived on account of the death. Expectation of life of the dependants also has to be taken into consideration. There are of course many imponderables entering into the calculation such as uncertainties in the life span, possibility of variation of income, other liabilities of the deceased and the effect these factors may have on the amount which he might be expected to have expended on the dependants. All these factors have to be balanced in arriving at a fair and just compensation. See Gobald Motor Service Ltd. v. R.M.K. Veluswami 1958-65 ACJ 179 (SC) Municipal Corporation of Delhi v. Subhagwanti 1966 ACJ 57 (SC) M.P. State Road Transport Corporation, Bairagarh, Bhopal v. Sudhakar 1977 ACJ 290 (SC) where relying on the decision in Mallett v. Mc Monagle 1969 ACJ 312 (HL, England) and P.B. Kader v. Thatchamma : AIR1970Ker241 the Supreme Court accepted 20 years as the suitable multiplier and State Insurance Officer v. Thankamma 1981 ACJ 77 (Kerala).

11. First claimant, father of Radhakrishnan Nair, was aged 48 years at the time of the accident. The mother was aged 41 years. Third claimant, of course, was aged 80. Undoubtedly, the family had a history of longevity. Even taking 75 years as expected life span, the father could be expected to live for 27 years and the mother for 34 years after the accident. The award itself was made only three years after the accident. Of course, third claimant could not be expected to live for 20 years. The Tribunal would have done well to have calculated the expected life of each of the claimants separately. But that was not done. Considering the varying life expectations of the three claimants, we are not inclined to interfere with the estimate of the average life expectation of 20 years arrived at by the Tribunal. We do not think that any interference is called for regarding the multiplier used by the Tribunal.

12. Next question is whether on account of lump sum payment, any deduction has to be made. It is true that the claimants get a lump sum payment in the place of payment expected to be spread over a period of 20 years and if they invest this amount right now they will get interest for the 20 years and retain the principal amount. However, the quantum of compensation was arrived at by the Tribunal without considering the future prospects of the deceased or the likely increase in his income: the computation was made only on the basis of the income derived by him and the benefit being derived by the dependents on the date of the accident. In other words, the Tribunal ignored the future prospects of the deceased. At the same time, we are entitled to take judicial notice of the fact that on account of severe inflation the rupee has been undergoing sharp decline in value. All these are relevant in considering the question whether any deduction has to be made. See Prem Singh v. Tika Ram 1967 ACJ 243 (Delhi); Himachal Government Transport v. Joginder Singh 1970 ACJ 37 (PH); Punjab State v. Hardeep Kaur 1970 ACJ 150 (PH); Jaswant Kaur v. Ratti Ram 1971 ACJ 31 (PH); Major Jagjit Singh v. Kartar Singh 1973 ACJ 147 (PH); Sood and Company v. Surjit Kaur 1973 ACJ 414 (PH); Damyanti Devi v. Sita Devi 1972 ACJ 334 (PH) Kailashwati v. Haryana State 1974 ACJ 514 (HP). In the light of the fact that computation of compensation was made on the basis of the income of the deceased at the time of the accident without taking into consideration the future prospects of the deceased and the likely fall in the value of the rupee on account of inflation and the fact that the award was passed more than three years after the date of the death of Radhakrishnan Nair and the fact that even as per the interim order of this Court only a sum of Rs. 20,000/- was deposited in the Tribunal with liberty to the claimants to withdraw the same and that interest awarded by the Tribunal is only at the rate of 6% per annum, we do not think any deduction should be made out of the lump sum compensation fixed by the Tribunal. We do not find that the amount awarded by the Tribunal is unreasonable or that the amount was fixed ignoring any principles of law. Therefore, we do not interfere.